Final lawsuit challenging Hunters Point redevelopment project awaits a judge's ruling
Hunters Point, the last major swath of usable land in San Francisco, appears at first glance to be a developer's dream — a prime piece of real estate with sweeping views of the bay, ample space, and a city government eager to capitalize on its potential.
But community groups have filed lawsuits challenging the project's many uncertainties, such as the fate of the toxic stew beneath the former U.S. Navy base in the heart of the project area, and both sides are now awaiting a court ruling on whether more studies are needed.
As an EPA-designated Superfund site, the 500-acre plot is home to an abundance of buried chemical contaminants, radioactive waste, and other unknown toxins, and the Navy has been slow to clean it up. Concerned that development plans have been premature in the face of this lingering mess, opponents filed lawsuits against developer Lennar Corp. and the city last year.
The project, approved July 2010 by the Board of Supervisors, includes plans for a new stadium for the 49ers, 10,500 housing units, parks, and commercial retail space. It has received praise from city and state government agencies as an economic and cultural boon to the community. But activist groups say the cleanup should happen before development occurs.
The Sierra Club settled its lawsuit over the project after the developer made some design changes (see "Uncertain developments," Jan. 18), so the lawsuit filed by People Organized to Win Employment Rights (POWER) and Greenaction is the last piece of litigation holding up the project. At the core of the legal challenge is whether the environmental impact report (EIR) properly analyzed the health impacts from toxic contamination at the site. After an April 18 hearing on the case, both sides are awaiting a ruling on whether the claims have merit and should be the subject of further study.
Activists claim the EIR violates California Environmental Quality Act protocols because it contains too much uncertainty, including the unknown fate of a large parcel of land slated for a stadium that is contingent on whether the 49ers decide to stay in San Francisco. POWER wants more details about the possible threats to human health before the 20-year project gets the final green light. But since the Navy is responsible for the cleanup, Lennar and the city have repeatedly countered that a full analysis is not their responsibility.
"The main issue that Greenaction and POWER have been concerned about throughout lawsuit is that it's very unclear from the EIR what exactly is going to happen and what level of contamination will be left," said attorney George Torgun with EarthJustice, which is representing the community groups. "What are the impacts of building on a federal Superfund site? There is a real lack of knowledge in the EIR."
April 18 was the second of two recent hearings held on the case. On March 24, Judge Ernest H. Goldsmith listened to a full day of testimony before a packed courtroom. Subsequent settlement discussions weren't successful, so both sides returned to court to seek a ruling that is expected sometime in the next two months.
Lennar attorneys offered to relinquish the possibility of a pre-cleanup early transfer of the property, which has been a major concern for POWER. Under this proposal, no development on any of the six parcels slated for transfer from the Navy could proceed until the federally mandated cleanup process was finished and certified. However, POWER does not believe this offer reduces the scope of the issues because final approval would still ultimately award control of the land to the developer based on what they believe is a flawed EIR.
"Severing any discussion of early transfer from this EIR would only serve to worsen the defects that petitioners have identified and would be contrary to the requirements of CEQA," Torgun wrote in the April 13 letter to the court.
POWER's counterproposal would allow large portions of the project to go through — rebuilding the Alice Griffith housing project and development on Candlestick Point — but Lennar considers it economically unfeasible. These portions of the project are not located on the shipyard but are included in overall plan.
"We want to see the project move forward with Alice Griffith and Candlestick Point," said POWER organizer Jaron Browne. "They've rebuilt housing projects at Cesar Chavez and other areas in the city — why can they only rebuild this one if they can redevelop the shipyard? It's a political game that Lennar has tied the rebuilding of it to this mammoth 770-acre development."
Lennar representatives wouldn't comment for this story. Community members have clashed with the megadeveloper over health issues in recent years. In 2008, Lennar was fined more than $500,000 by the Bay Area Air Quality Management District for allowing dust containing asbestos to settle on the surrounding neighborhoods. Then, in March, community organizations released a report showing e-mails from 2006 to 2009 between the EPA, the San Francisco Department of Public Health, and Lennar revealing a possible cover-up of the asbestos exposure.
"They underestimated our understanding of what is happening here," Browne said. "The whole heart of this issue is that this is a Superfund site. Even if you remove the possibility of early transfer, they are still planning on doing work while remediation is still years to go on other parcels."
Longtime Bayview resident and Greenaction member Marie Harrison said that not only is the EIR too fraught with uncertainty, it's incomplete. "There are over 600 blank pages in that document," she said. "How can you approve an EIR that is supposed to tell you what is there, what the effects will be, and what the project will be? We kept asking the supervisors: How do you convince the community that they are doing something that is good and safe when the history shows otherwise?
During both court hearings, it was evident no clear definition of the project exists since it contains many variables to account for unknowns. Attorneys for Lennar and the city argue that the EIR effectively addresses each potential use and demonstrates a full knowledge of possible contaminants.
Wilma Subra, an environmental scientist for New Orleans-based Environmental Health Advocates, has worked with POWER and Greenaction to understand the breadth of contamination and the typical process of cleanup of a Superfund site. She pointed out that the Navy's cleanup plan is completely separate from the EIR submitted for the project.
"Those two documents don't agree with what development will be," Subra said. "Usually you wait much longer in the process to really know that the land is safe. In a normal Superfund process, you would first do an implementation of the remediation process, find out if it worked, then — years down the line — you would start thinking about development."
If the EIR is deemed inadequate, Lennar and the city will be required to further analyze the contaminants, outline cleanup strategies, and resubmit a new EIR. If the judge rules the EIR satisfies CEQA, the project can move forward.
"CEQA is one of the few really democratic processes," Browne said. "If you just have this one moment in 2011 when people are able to comment and weigh in, and then have 20 years where they are building within that, it's not really fair."